company is to be dissolved, and the company in general meeting has passed Form 577. a resolution requiring the company to be wound up voluntarily : 2. Whenever the company has passed a special resolution requiring the company to be wound up voluntarily : 3. Whenever the company has passed an extraordinary resolution to the effect that it has been proved to their satisfaction that the company cannot by reason of its liabilities continue its business, and that it is advisable to wind up the same. For the purposes of this Act, any resolution shall be deemed to be extraordinary which is passed in such manner as would, if it had been confirmed by a subsequent meeting, have constituted a special resolution as hereinbefore defined." Companies are rarely or never wound up in pursuance of paragraph 1 of the above section, and accordingly voluntary winding up is usually determined on by special or extraordinary resolution. Where a company is in difficulties and pressed by its creditors, an extraordinary resolution to wind up is generally passed, for that is the quickest mode of bringing about a voluntary winding up: in other cases a special resolution [supra, p. 186] is usually passed. Although this enactment appears to contemplate the appointment of the liqui dators after the passing of the special or extraordinary resolution for winding up, there is no objection, in the case of a special resolution, to an appointment of the liquidators (as in the above form) at the first meeting, followed by a confirmation of the resolution at the second meeting. London & Australian Agency, W. N. 1873, 198; 22 W. R. 45; Petersburgh Gas Co., 33 L. T. 637. And this course is frequently adopted. Where, however, the resolution passed at the first meeting does not purport to appoint liquidators, they are usually appointed at the second meeting immediately after the confirmation of the special resolution. Liquidators may be appointed at the second meeting, in the case of a special resolution, and at the only meeting, in the case of an extraordinary resolution, without notice having been given of the intention to propose a resolution for their appointment. Oakes v. Turquand, L. R. 2 H. L. 325. But it is usual to mention the matter in the notice, and very commonly the notice states the names of the persons to be proposed for appointment. Sometimes, in the case of a special resolution, nothing is said about liquidators in the notice convening the first meeting, but the notice convening the second meeting contains a statement as to their appointment, as in Form 578. Form 578. Notice of Notice, &c. [as in Form 577 to "noon"], when the subjoined resolution which was passed at the extraordinary meeting of the com- second meeting pany, held the day of will be submitted for confirmation as to confirm a special resolution: "That," &c. [set out the resolution]. If the resolution does not purport to appoint liquidators, add : Should the resolution be confirmed a further resolution will be proposed at the same meeting for the appointment of a liquidator or liquidators [or for the appointment of A. and B. to be liquidators] for the purposes of such winding up [and fixing his or their remuneration]. Dated, &c. special resolu tion to wind up. No. St., &c. By order of the Board, In most cases the remuneration of the liquidators is not determined at the time of their appointment, but it is by no means uncommon to determine it then. See infra, p. 480. Form 579. The Notice of meet Company Limited. Notice, &c. [as in Form 577 down to "noon"], for the purpose of considering, and if deemed expedient passing, the subjoined extraorextraordinary dinary resolution. ing to pass resolution to wind up. Resolution. That it has been proved to the satisfaction of this meeting that the company cannot by reason of its liabilities continue its business, and that it is advisable to wind up the same, and accordingly that the company be wound up voluntarily. Should the resolution, &c. [as in Form 578]. By order of the Board, No. St., &c. Secretary. It is essential to the validity of an extraordinary resolution for winding up, that the notice convening the meeting should give the members notice, expressly or impliedly, that the resolution will take effect under s. 129, sub-sec. 3, and consequently will not require confirmation at a second meeting. In re Bridport Co., 2 Ch. 194; In re Silkstone Co., 1 C. Div. 38. Accordingly, some persons insert in the notice a statement that "the above resolution is intended to take effect under sub-section 3 of section 129 of the Companies Act, 1862," or other words to that effect. But a notice framed as in Form 579 is sufficient. Stone v. City & County Bank, 3 C. P. D. 282. More companies are wound up by extraordinary than by special resolution. Form 580. Notice for special resolu up. The Company Limited. At an extraordinary general meeting of the members of the abovenamed company, duly convened and held at on the day of the subjoined special resolution was duly passed, and at a subsequent extraordinary general meeting of the members of the said company also duly convened and held at the same place, on, &c., the said resolution was duly confirmed. Resolution. That, &c. [set it out.] [If the resolution does not purport to appoint liquidators, add:] And at such last-mentioned meeting of was appointed liquidator for the purposes of the winding up. Dated, &c. Liquidator. Notice of any special or extraordinary resolution for winding up must be given in the London Gazette as respects companies registered in England. S. 132 of the Act. In the case of an extraordinary resolution, the notice for the Gazette will be as follows: The Company Limited. Form 581. At an extraordinary general meeting of the members of the above- Notice or named company, duly convened and held at day of Gazette of extraordinary resolution to of wind up. on the -, the following extraordinary resolution was duly passed:That it has been proved, &c., and at the same meeting was appointed liquidator for the purposes of such winding up. Dated this day of Chairman. The notice for insertion in the Gazette must be signed by the chairman of the meeting at which the special resolution was confirmed, or at which the extraordinary resolution was passed, as the case may be. His signature must be attested by a witness who can give a London address, and there must be a duplicate attested and verified by the statutory declaration of a director, secretary, or member of the company who was present at the meetings or meeting, as the case may be. As regards a special resolution, the declaration should state: (1) That extraordinary general meetings were duly held on the day of - and day of at (2) That the resolution mentioned in the annexed notice marked A. was duly passed at the first of such meetings and confirmed at the second meeting : (3) That was duly appointed chairman of the second meeting: (4) That the declarant was present on the day of and saw the said the duly appointed chairman aforesaid sign the said notice hereto annexed, and that the signature - (imitating it), set and subscribed to the said notice, is the proper handwriting of the said --, and that the signature set and subscribed to the said notice as the attesting witness to the said signature, is of the declarant's own proper handwriting. As regards an extraordinary resolution, the declaration should state: (1) That an extraordinary general meeting of the company was held on the day of at (2) That the resolution mentioned in the annexed notice marked A. was duly passed at such meeting: (3) that was duly appointed chairman of the said meeting: (4) As in the preceding case. The Company, Limited. [See Form 150, supra, p. 210.] Form 582. Notice to Notice of the passing of a special resolution to wind-up must also be given to the special resolu Registrar of Joint Stock Companies, by filing with him a printed copy. supra, p. 210. See tion to wind up. Contributories. In the matter of the Companies Act, 1862. And in the matter of The -Company Limited. Form 583. contributories. Take notice that A. B., the liquidator of the above-named company Notice to has appointed the day of Dated the day of A., Liquidator. To Mr. Under 8. 133 of the Act the liquidator has power to settle the list of contributories, and any list so settled is to be primâ facie evidence of the liability of the persons named therein to be contributories. The form of the list should be similar to that used in a compulsory winding up. See Form 25 in Schedule to Rules. It can be intituled "In the matter, &c., [as above] list of contributories of the abovenamed company." It is usual to fix a day for settling the list, and to give notice thereof to the contributories, as in Form 583; but it is not essential so to do. Brighton Arcade Co. v. Dowling, L. R. 3 C. P. 175, 187; London Bank of Scotland, W. N. 1867, 114. At the time fixed by the notice, the liquidator will proceed to settle the list, taking notice of any objections then or theretofore made. Any doubtful cases can be adjourned for further consideration. As to who should be on the list, see s. 38 of the Act, and Buckley, 115 et seq.; Lindley, 1327 et seq. When the list has been settled altogether or in part, the liquidator very commonly signs a certificate, following as nearly as may be Form 31 in the Schedule to Rules. A contributory who objects to his name being placed on the list can apply to the court to rectify the register of members, or the list of contributories, or both, or he may wait till a call is made on him and proceedings taken to enforce the same, and then resist. If there are many disputed cases, the liquidator sometimes applies to the court to settle the list, or applies as regards the cases in dispute. In the former case the liquidator takes out a summons that the list of contributories of the company may be settled by the court, and that all proper inquiries may be made and directions given for that purpose, and the subsequent proceedings will be similar to those in a compulsory winding up, supra, p. 390 et seq. If the dispute is only as to a single person or a few persons, the summons will be "that it may be determined whether A. B. is or is not a contributory," or "that it may be declared that the liquidator of the above-named co. is entitled to settle A. B. of upon the list of contributories of the company in respect of shares of -7. each, numbered to both inclusive, and upon each of which shares the sum of -7. and no more has been paid up." However, in most cases, the liquidator settles the person disputing on the list and leaves him to litigate the matter by applying to the court, or by resisting proceedings to enforce a call. Applications by contributories to have their names removed from the list are common they are usually made by motion or summons. See infra, p. 483, and supra, p. 391. Calls. Title: see supra, Form 583. Form 584. Call. I, the undersigned of, the liquidator of the above-named company, do hereby make a call of share all the contributories of the said company [or upon the several persons named in the 1. per upon 2nd column of the schedule hereto being respectively contributories Form 584. of the said company in respect of the number of shares set opposite their names respectively in the same schedule]. Dated, &c. W. M., witness to the signature A. B., Liquidator. SCHEDULE. [As in Form 583.] The list of contributories having been settled wholly or in part, the liquidator will from time to time make calls on the contributories under sub-sec. 9 of s. 133 of the Act. It is not necessary to give any notice of the intention to make a call, though it is sometimes done. The liquidator should make the call by an instrument in writing, which can be as in Form 584. The call having been made, the liquidator will give notice thereof to the contributories. Such notice may be as follows: Title: see supra, Form 583. -7. Take notice that on the day of, I, the undersigned of, the liquidator of the above-named company, made a call ofper share upon all the contributories of the above-named company [or as the case may be], and that the amount due from you in respect of the call so made is the sum of 7., which sum you are hereby required to pay to me at my office situate, &c., on or before the next. In default of payment, interest at the rate of annum will be charged upon the amount unpaid. Dated, &c. day of A. B., Liquidator. Form 585. Notice of call. If the call is not duly paid, the liquidator will, if necessary, take proceedings to enforce payment. Sometimes the liquidator applies to the court to make a call. Enforcing payment of Calls. Formal parts: see infra, Form 606. Summons or Upon the hearing of an application on the part of A. B., the liqui- Form 586. dator of the above-named company, that the several persons named in the 2nd column of the schedule hereto, being respectively contributories notice of of the said company, may be ordered to pay to the said A. B. as such liquidator as afsd. at his office situate at within four days after motion to enforce calls. |